IN THE MATTER OF ARBITRATION

 

Between

 

 

Patent Office Professional Association

 

                                                                                                FMCS Case No. 00-01666

                                                                                                Employee Termination

                                    and

                                                                                                                                Robert T. Moore

                                                                                                                                Arbitrator

 

US Department of Commerce,

Patent and Trademark Office

 

 

DECISION AND AWARD

ON THE MERITS

 

Appearances:

 

For the Patent Office Professional Association (POPA or Union) :

 

                Raymond B. Johnson                                                                POPA Representative

                David L. Robertson                                                                                POPA Representative

                                                                                               

For the US Patent and Trademark Office (Agency, Management or PTO ):

 

                William Way, Esq.                                                                                Associate Counsel, ­­Office of General Counsel, PTO

 

 

Issue Presented

 

                The parties did not stipulate to an issue, and while the evi­dence raised impor­tant sub-issues which will be addressed, the principal issue is found to be:

 

Whether the Agency's removal of the grievant from federal service was "for such cause as will promote the efficiency of the service," as prescribed by 5 USC §7513 (­a), and was otherwise in compliance with the laws, rules and regulations of the United States and provisions of the parties' Labor Agreement, and if not what should the remedy be?

 

Applicable Statutory and Labor Agreement Provisions

 

                The statutory and Labor Agreement provisions of importance in this arbitration will be quoted where their relevance and their construction by the courts and the gov­erning agencies charged with their enforcement are discussed.

 

Facts

 

                General Background Facts:   The US Patent and Trademark Office (PTO) is an agency within the US Depart­ment of Commerce responsible for granting patents and register­ing  trade­marks.   The Patent side of the PTO is divided into Technical Centers which correspond to the nature of patent applications they examine.  For example, a chemical-based patent applica­tion goes to one Tech­nical Center while a mechani­cally-based applica­tion would go to another.   Once in a Technical Center, the distinct­ion between applications becomes yet more refined until a patent applica­tion is assigned to an "Art Unit," and then to an Exam­iner with special­ized knowl­edge and experience in the primary "Class" and sub-class of the applica­tion.

 

                The grievant was a Patent Examiner who began his PTO em­ployment in July, 1996 at the GS 9 level.   By education and training, he is an Electrical Engineer.  At the time of his removal from service on August 30, 1999, he had advanced to GS 11.   His responsibility had been to examine patent applica­tions for devices and processes intended for various types of measuring and testing, which under the PTO Patent Classification System were desig­nated as Art Unit 2858, Class 324 patent applica­tions.   Within this Class, the grievant­'s work was further limited to applica­tions involving, as examples, an "in­ternal com­bustion engine ignition system or device," or a "material property using ther­moelectric phenome­non," or a device "using ionization effects."  

 

                Then, within each of these subclasses, such as the last, "a device or process for measur­ing or testing using ionization effects," the device or process would be further assigned to a sub-subclass such as "for monitoring pressure," with yet another break­down into whether the monitoring was dependent on measuring fluctuations in the power emissions from (a) "a radioac­tive sub­stance," (b) "thermi­onic emis­sions," (c) "a mag­netic field," or still some other source.   Altogether, the grievant was responsi­ble for approxi­mately 17 sub­classes of Class 324 under each of which were as many as a score of very specific "method" and "purpose" subclass­es based on the materials used, the means of making the mea­surements, or the objectives of the test. 1

                What is important is that no patent applications for which the grievant serv­ed as an examiner had anything to do with his non-official obsessions.   Those obsessions are with alternative sources of energy relying on non-conventional theories which have generally gone unrecog­nized, or been flatly rejected, in the conventional scien­tific litera­ture.   The more controver­sial of the grievant's interests are in theories which defy the accept­ed laws of physics.  Central among these, but certainly not his exclusive area of inter­est, was cold fusion.

 

                The Cold Fusion Controversy:   Up until 1989, the possibility of cold fusion was an acceptable scientific topic among physicists and others in the world of nuclear sci­ence.  That acceptance received a setback in 1989 following the public announce­ment by two recog­nized and respected electro-chemists at the Univer­sity of Utah that they had achieved fusion using a battery connected to palladium electrodes submerged in heavy water (water, the hydrogen component of which has been replaced by its iso­tope, deu­terium).   Since less energy was claim­ed to have been expend­ed by the battery than the amount of energy pro­duced, the realization of a device which could steadily (versus explo­sively) produce more energy (output) than the amount needed (input) in its pro­duction seemed to have been achieved. 2

 

                Scientists elsewhere immediately sought to duplicate this "table top" accom­plish­ment of cold fusion, but with nary a replication.   The simple formulation from Utah was a dud.  The revolution­ary an­nouncement had been premature, and the importance of prior peer review was forever firmly associated with "scientific breakthroughs."   It dis­credited all re­search into cold fusion and other non-conventional sources of ener­gy, and pushed those who con­tinued to pursue or support such ideas into the fringe or "kook" segments of physics and chemis­try.   More important, before the year 1989 was out, the US De­partment of Energy (DOE) pro­nounced cold fusion to be unworthy of further government financed research.

 

                The grievant is a member of the fringe, though not personally experimenting with cold fusion or any other energy alternative.   He is only an outside observer with strong beliefs about the place cold fusion and other yet to be proven sources of energy have in the future mix of the world's electrical power production.   However, he does not reject the Newtonian laws of physics as some in the fringe may appear to regularly do.  Rather, it is his position that the presently ridicul­ed theo­ries he cham­pions, or at least believes are suffi­ciently promising to war­rant more serious scientific inquiry, will even­tually be found to be consistent with accepted axioms of physics and chemistry, but how that will be done, he insists, just has yet to be discov­ered.   Still, this puts him at odds with most scientists in those two fields.

 

                It also placed him at odds with the prevailing policy of the PTO.   Currently, patent applica­tions for alternative or non-conven­tional sources of nuclear fusion energy, including cold fusion, are routed to Exam­iner Harvey Behrend.   This routing has been going on for more than 16 years pursuant to a June 5, 1989 memo to all Group Direc­tors with the subject; Cold Fusion Applications.  It reads:

 

Although the media attention relating to cold fusion has diminished, we are just now beginning to see a large number of applications relating to this subject.   Although we are attempting to identify all of these applica­tions in the pre-examination screening process, there is the possibility that a few applications may slip through without being identified.   Please have your examiners be on the look out for any application that may relate to cold fusion.  Some of the areas where a cold fusion application might be filed are:

 

                                                Fuel Cells                                                class 429

                                                Electrochemistry                                class 204

                                                Power plant                                                class 60

                                                Radiant energy                                class 250

                                    Helium production                                class 423

 

If one of your examiners should receive an application related to cold fusion, he or she should check to make sure the words "COLD FUSION" are stamped on the file wrapper.   If not, the application should be referred to Licensing and Review [ ] for marking.  Also, any action on one of these applications should be routed through the Group 220 Director's Office and the Office of the Assistant Commissioner for Patents prior to mailing.

 

                The Agency's witnesses avoided directly answering the question of what explicit instructions were given Mr. Behrend and other examiners in the "fusion" group on how to handle applications for cold fusion patents.   However, their testi­mony and de­meanor when ques­tioned were clear enough. 

 

                Figura­tively speaking, Mr. Behrend has a "re­jected" stamp he wields on patent applica­tions which claim to achieve cold fusion.   That is, whether well found­ed or not, the PTO has a bias against the con­cept and theories of cold fusion.  Largely be­cause they defy the Newto­nian proposi­tion that there is "no free energy" or "perpetual mo­tion" within the bounds of physics, the PTO considers cold fusion to be "inoperable technol­ogy."   The evidence of this will become more concrete shortly in connec­tion with the grievant's pro-cold fusion activities. 

 

                As for those activities, the Agency did not claim in the Proposal to Remove that the grievant­'s belief in the possibility of "free energy" affected anything he did in accept­ing or rejecting patent applica­tions assigned to him.   Among other things, those applications had nothing to do non-conventional sources of power.  All applica­tions channeled to the measure­ment group depended on conventional sources of electrical, mag­netic, and other energy.

                The grievant's obsessions with alternative and scientifically controversial energy sources were no secret.   And, they were an embarrassment to the PTO.  Always as simply a private citizen in a Quixote crusade, he regularly resorted to the Internet and took advantage of public and private confer­ences and other gatherings where long term and future energy needs were on the agenda.   By both means, he advocated great­er public and private funding for research and experimen­tation in the fields of new or non-conven­tional energy, and sought recogni­tion in the established scientific commu­nity of the legitimacy of those fields of research.   Without that recogni­tion, the prospects of either private sector investment or public funding were slim to the point of nonexis­tent.  His principal soapbox was the Integrity Research Institute (IRI), a nonprofit organi­zation which he formed and ran as its president with a handful of members and volunteers.

 

                There were and are forces as adamantly opposed to accepting the viability of the principal areas of that research as the grievant is their advocate, especially when the sub­ject is that of "cold fusion," a phrase often used here just as in the PTO memo, to embrace not only ­that idea, but the full spectrum of searches for free, or at least low cost, sources of energy.   The main watch­dog out to discredit the grievant and other, more promi­nent like-minded advo­cates, was Robert Park.  He is the Communi­cations Director of the Amer­ican Physical Society, a respected association of mainline physicists.   Mr. Park is also the author of the popular book, Voodoo Science, which with little  mercy, de­bunks cold fusion and all other concepts of "free energy."

 

                The Removal Proposal: The Removal Proposal was prepared by Sydney Rose, the PTO Labor Relations Specialists responsible for disciplinary matters.   It was given to and signed by Margaret A. Focarino, the grievant's second or third line supervisor, on May 7, 1999 and charged the grievant as follows:

 

On March 9, 1999, you contacted the Department [of Commerce,] Office of Administra­tive Operations (OAO) by telephone.   You spoke to Margaret House, Support Services Staff, and asked her about the proce­dures for reserving conference space for a private function.  You were told that space was not usually reserved for private functions but that you could file a written request [with Telita Holloway?] which would be reviewed and considered.  You called again and indicated that you come to the Depart­ment to meet with Telita Holloway that afternoon.   At approximately 5:00 p.m. that afternoon, you met with Ms. Holloway and indicated that you were a PTO employee.  For the next hour and a half, she showed you the Department's auditorium, lobby and various conference room.   You never indicated to Ms. Holloway that you were considering reserving space at the Department for a private function to be run by the Integrity Research Institute.   However, you reserved the auditorium, lobby and four confer­ence rooms at the Department for April 29, 30 and May 1, 1999, on behalf of the PTO.

 

You posted information regarding a Conference on Future Energy on the Internet.   The website indicated that [ ] the First International Conference on Future Energy (COFE) was 'in cooperation with the U.S. Dept. of Com­merce.'  The notice contained an electronic brochure form which indicat­ed that the 'Integrity Research Institute under the auspices of the U.S. De­partment of Commerce at 14th and Constitution, Washington, DC, presents the first COFE in the main Auditorium.  Lectures will extend from 9 AM to 5 PM daily and workshops on Saturday from 9 AM to 5 PM.'   The posting indicated that the Saturday workshops would cost $30.00 each, and there was a $20.00 charge for videotapes and a $30.00 charge for the book 'Pro­ceedings of COFE'.

 

                You posted a message on the Internet which indicated the following:

 

Interested in advanced energy technologies that won't produce global warming?   Then don't miss attending the First International Conference on Future Energy, cosponsored by the U.S. Depart­ment of Commerce and Integrity Research Institute! . . .

 

The Conference was common knowledge in that Matthew Heyman, Public and Business Affairs, National Institute of Standards and Technology sent Richard Maulsby, PTO Public Affairs, an e-mail on March 22, 1999, in which he provided Mr. Maulsby with information about the conference and [the] promotional materials [ ] 'under the auspices of the U.S. Depart­ment of Commerce.'

 

*          *           *

Because the [DoC] reservation had nothing to do with official business, I sent you an e-mail indicating the that the reservation had been canceled.   You responded that you were surprised by the canceling of a 'PTOS [PTO Society] event.' . . . I was contacted by e-mail from Matthew Kaness, Pres­ident of the PTOS who indicated that the PTOS was not cosponsoring the COFE and had not been approached about cosponsoring the confer­ence.

               

On March 29, 1999, you sent me an e-mail in which you indicated that your 'choice of wording was incorrect.   COFE was potentially a PTOS event and the approval process had just begun.  Our [PTOS] board meet­ing is another week away and that would have been the next stage in the development of the event.'  

 

*          *           *

                Reason 1: Violation of Conflict of Interest Regulations

 

Government-wide Standards of Conduct regulations applicable to Agency employees prohibit a Federal employee from using his Government posi­tion or title in a way that could reasonably be construed to imply that the Agency sanctions or endorses his personal activities or those of others.   5 CFR 2635.702(b).  These regulations also prohibit Federal employees from using public office for private gain or the gain of nonprofit organiza­tions of which the employee is affiliated.   5 CFR 2635.702(a).

 

You used your employment with PTO in order to reserve the [DoC] space for COFE.   Since your were going to charge participants of the COFE for workshops, publications and videotapes, you or IRI would have gained by the participation in a conference for which you reserved space using your PTO employment.   Your failure to identify the nature [non-conventional source of energy] of the conference to Agency [DoC] employees and your reserving the space for the conference as a PTO employee represents a violation of the above-cited regulations.

 

*          *           *

                Reason 2: Misrepresentation

 

You represented in the information promoting the COFE that the confer­ence was cosponsored by the [US DoC]; was presented in cooperation with the [US DoC] in the Department's main auditorium.   You never re­quested nor received permission from any Agency official to indicate that the conference which IRI was presenting was cosponsored or other­wise endorsed by the Agency.

 

This was a clear misrepresentation of the Agency's role in the conference (which was no role).   Although the posting of this misleading information on the IRI website could be construed to be off duty conduct, there is a direct nexus between this activity and your employment with the Agency.

 

The misrepresentation of the Agency's role in your conference was con­duct prejudicial to the Government as it gave the impression to any­one interested in the conference or reading IRI's website that the confer­ence for which you or IRI would receive money was sponsored by a Govern­ment Agency.   It gave the impression that a Government Agency was endorsing a particular type of energy producing technology and a confer­ence which you or IRI would financially benefit.   The web page posting which stated that the conference was cosponsored by the [US DoC] indi­cated that the web page was viewed 52,738 times.  Furthermore, PTO was contacted by NIST about your claim that the [DoC] was sponsor­ing your conference.   Clearly, your misrepresentation must be viewed as more serious and adverse to the Government in light of the fact that it was wide­ly disseminated.

 

I also note that when I informed you that your reservation of Department space was canceled, you indicated to me that you were surprised at the cancellation of a 'PTOS event' and that the conference was being pre­sented in cooperation with the [PTOS].   However, the president of that organization indicated that no such authorization was provided nor had the Society been approached to obtain such authorization.   You later admitted to me that you had been mistaken in describing the Society's cooperation.  Your conduct throughout March demonstrated that you have been untrustworthy and devious in your attempt to obtain the De­partment's space and then to excuse your behavior.

 

In proposing your removal, I have considered your lack of prior discipline, your three (3) years of employment with the Agency and your fully suc­cessful performance during that time.   There have been several incidents in the past for which you were counseled about using your official position in an Internet posting in an effort to recruit 'infinite energy technologists' in order to 'infiltrate' the PTO or bothering a coworker to such an extent that you were banned from a part of the PTO's premises.   These counsel­ings should have put you on notice that you could not use your PTO position to advance your personal interests.  Because these counselings were informal, i did not consider them in determining the appropriate corrective action to propose.

 

However, after considering your relatively short career at PTO and the seriousness of your misconduct and the misuse of your position as a PTO employee, I have no recourse but to propose your removal to promote the efficiency of the service.

 

Production of Documents and Witnesses

 

                The Union Pre-Removal Requests for Evidence and Access to Witnesses :  Under the parties' Labor Agreement, Article 12, Disciplinary and Adverse Actions based on Conduct, has two sections of direct relevance:

 

                Section 4 provides in pertinent part:

 

The employee and/or his representative shall receive all evidence relied upon by the [PTO] in proposing any disciplinary or adverse action.    The [PTO] shall also provide the employee, upon request, all evidence that is favorable to the employee and related to the reasons for the proposed action. . . .

 

                Section 5 provides in its entirety:

 

Where the Office has relied upon witnesses to support the reasons for the proposed action, the Office will make those witnesses available, to the extent it has control over them, for the employee or his/her representative to question.

 

                The May 7, 1999 Removal Proposal flagged as evidence against the grievant both documents allegedly authored by the grievant, and witnesses to whom he allegedly made representations in obtaining the use of DoC facilities for the COFE conference.   In preparation for presen­ting the Deciding Official with a defense of the grievant and a chal­lenge to the severity of recommended removal, the Union filed a request on May 21, 1999, and a supplemen­tal request on June 9, 1999, for numerous documents and access to wit­nesses.

 

            As both requests explained:

 

The information requested [ ] is for the purpose of evaluating whether [the grievant] is being treated equitably in terms of either the charge or the proposed penalty.

 

                As will be discussed more fully shortly, the Union relied for authority in making the request principally on 5 USC §7114(b)4 and Article 3, Section 2 of the Labor Agree­ment, but freely sprinkled reference to Article 12, Section 5 when it came to making available for Union interviews those persons the Agency had relied on for its charges against the grievant.

 

                On July 14, 1999, the Agency responded to the request for documents by claim­ing either that there were "no records," the request asked for "attorney client privileged information," or "the Union request [was] not specific enough to permit the Agency to make a reasonable judgement as to whether the information must be disclosed under 5 USC §7114(b)(4)."    Thus, of 18 documents or records requested by the Union, only portions of four were turned over by the Agency.  It claimed that the documents that it pro­duced were all that were required of it under 5 UCS §7114(b)(4).

 

                As for the production of the witnesses to the grievant's alleged conflict of interest and misrepresentations, the Agency refused to make them available to be questioned for the follow­ing asserted reason:

 

The Agency explicitly denies that Article 12 [Section 5] in its entirety con­stitutes a past practice.   Because the Agency has no collective bargain­ing agreement with the Union and because Section 5 [which was enforced or otherwise found applicable in] the Johnson award does not constitute a past practice, the Agency will not make the individuals requested in either the May 21 or June 8 information request available for questioning.

 

                On July 29, 1999, the Union challenged the truthfulness of the Agency's multiple "no re­cords" responses.   For some, it cited specific prior arbitrations establishing Agency record keeping systems, and for those records it sought so as to show a disparity in penalty, it cited one or more prior arbitrations involving the same or similar conduct as alleged to have been engaged in by the grievant.   Ms. Rose or others in HR rejected the Union's accusations, and the Agency released no further documents or other informa­tion to the Union, nor did it back off its refusal to make the requested witnesses available for interview.  

 

                Rather, on August 25, 1999, the Deciding Official, Nicholas P. Godici, then Depu­ty Assistant Commis­sioner, signed the Removal Decision.   On the matter of the Union's efforts to obtain documents and to interview those person allegedly supplying the in­criminating evidence against the grievant, the Decision recited:

 

On July 14, 1999, The Agency responded to the two information requests [from the Union]. . . .   That response clearly indicated that you had two weeks [ ] to prepare, schedule and hold an oral reply [to the Removal Proposal]. . . .  Instead of providing a reply by July 29, 1999 (14 days after July 15), your representative submitted a memorandum which . . . dis­puted information provided by the Agency.   It also requested further information and another extension of time to reply.  I have reviewed this third request, even though it was late, and I find no reason to provide further information nor to provide any further extension of time for you to reply.

 

                Enter the Arbitrators.   On September 8, 1999, the Union gave the Agency its Notice of Intent to Arbitrate, with a copy and fees filed with the FMCS. 3  On November 3, 1999, the parties jointly re­quested a panel of arbitrators from the FMCS.   Two days later, the FMCS provided a panel of seven arbitrators from which the parties selected one of the candidates in early March, 2000.

 

                The first arbitrator declined the appointment, and the parties then se­lected a second arbitrator, Earl W. Hockenberry, Jr., who accepted his appointment.   Straight off, he was confronted with the parties' ongoing dispute over the right of the Union to interview eight witnesses who either the Agency had refer­enced in the Removal Propo­sal, or the Union believed had informa­tion material to the defense of the grievant.   In addi­tion, there was the list of documents which the Union sought either for their bearing on the issue of good cause, or issues over the severity of imposing the ultimate disciplin­ary penalty of removal.

 

                In a decision and order entered on January 31, 2002, Mr. Hockenberry accepted the arguments of the PTO against its having to produce one of the eight witnesses want­ed for interview by the Union, and some documents, largely on the basis of the Union having failed to "establish a 'particularized need' for the informa­tion by articulat­ing, with specificity, why it need[ed] the requested information, including the use to which the union [would] put the information and the connection between those uses and the union's representational responsibilities under the Statute [5 USC §7114(b)(4)]."   How­ever, as for seven of the eight witnes­ses sought to be interview­ed, and most of the doc­uments and other information sought, Mr. Hocken­berry found the Union met its burden and he ordered the Agency to make produc­tion.

 

                Despite this order, the Agency continued its refusal to produce the identified seven individuals for interview and to resist production of the documents sought with argu­ments that it had either produced the materials earlier, or that others were irrele­vant.   The Agency also continued to claim that certain information sought did not exist, was unavail­able, or was outside the possession and control of the PTO.

 

                While these disputes grew and the Agency's positions hardened, Mr. Hocken­berry fell ill and asked the FMCS to relieve him of further responsibility for this arbitra­tion.   On March 19, 2004, the FMCS, with the agreement of the parties, appoint­ed the third, present arbitrator to assume responsibility for bringing this case to a final resolu­tion on its merits.   Again, first on the agenda was the parties's squabble over whether the Agency had complied with Mr. Hockenberry's January 31, 2002 decision and order.  

                A copy of the decision and order was requested, and each party asked to explain its contention as to whether there had or had not been compli­ance.   The results were clear indications that the Agency had fallen short of compliance with most of the order, and was wanting in its excuses for doing so.   In tele­phone confer­ence calls that followed, the Agency initially indi­cated that it was inclined to call for the re-litigation of the Labor Agreement and statutory bases of the Hockenber­ry orde­r.  

 

            In response, the Agency was advised that I was familiar through prior service with its position that no labor agreement existed between it and the POPA, and that there was absolutely no likelihood that it could persuade me to produce a decision counter to what every known arbitrator, the FLRA, the MSPB, and the 4th Circuit had found.   That would mean that, despite its wish to the contrary, I would find that the Agency was saddled with the Labor Agreement, and especially with Article 12, Section 4 and 5.

 

                                The Agency was further advised that I would be delighted to re-litigate whether 5 USC §7114 (b)(4) controls what the Union can and cannot receive, including the right of the grie­vant and his Union represen­tatives to confront through pre-hearing inter­views the wit­nesses against the grievant.   It was made clear that I believe §7114(b)(­4) has no bearing on the discovery that is permissi­ble when a removal case arrives before me as an arbitrator.   At that point, the rules I would follow under my authority to manage this arbitra­tion would be more akin to the Federal Rules of Civil Procedure, which provide for wide ranging discovery not only of documents and witnesses directly relevant to the issues, but which might lead to the discovery of such relevant evidence.

 

                On understanding these views of the third arbitrator, the Agency re­thought its inclination to argue for further restrictions on what and who it had to sur­render to the Union for its perusal and oral examination, and decided it was further ahead accepting the limits of the existing §7114(b)(4) based order.   As for the Union, it chose to remain mute on the issue of rearguing its demands for all the documents and witness access made while the Removal Proposal was still pending.   Instead, it indicated that it would be satisfied with Mr. Hockenberry's narrowly tailored order, because both it and the grievant were anxious to get to a resolution of his removal on its merits.

 

                Accordingly, by an Order of Enforcement and Notice of Likely Consequences of Non-Compliance entered May 13, 2004, the Agency was told to fully comp­ly with Mr. Hockenberry­'s earlier order and both parties were reminded that treat­ing the disclosure of exculpa­tory or mitigating information over which management has control or know­ledge as a game of "hide and seek" would not be tolerated.  

 

Rather, attempts to do so will be met with sanctions that may well cripple the offending party's case.   In short, the parties should have no doubt about the resolve of this arbitrator to assure a fair and complete hearing during which all relevant facts de­veloped by the witnesses' testi­mony and through docu­ments that are placed in the record with the expectation of a "fair and balanced" presenta­tion of the facts of each party's case from which it will be decided [ ] whether good cause existed for disci­pline, and if so, whether the penalty of removal was just and fair and otherwise in compli­ance with the Douglas factors applicable to the situa­tion.

 

                With respect to the specifics of the May 13, 2004 Order, only the production of wit­nesses for Union interview and one item of documentary evidence remain of conse­quence.   The witnesses ordered produced and the consequences of non-production or non-coopera­tion were spelled out:

 

Witness Interviews :  On the day after the joint conference call held on May 10, 2002, the PTO should have started to locate and contact the fol­lowing witnesses as to their availabil­ity for [Union] interview.   Whether that information is or is not complete on the date of receipt of this Order, the PTO shall contact the [Union] representatives involved [ ] and begin filling in the date and time slots of the following schedule[:]

 

                                                                                                                                Production for                Inter­view

       Witness                Employer and Status            Interview Date            Duration

 

       Margaret House                DoC, retired                                                                                                   1 hour

 

       Telita Holloway            DoC, active                                                                                                   2 hours

 

       Catherine Teti                                 PTO, active                                                                                                   3 hours

 

       Matthew Heyman                DoC, NIST, active                                                                                   3 hours

 

       Margaret Focarino       PTO, Proposing Official                                                                Unlimited

 

       Matthew A. Kaness       PTO, quit, may be at UVA                                                                1 hour

 

       Sandra O'Shea             PTO, active, 1st Line Supervisor                                                Unlim­ited

 

Consequences of Non-Production or Non-Cooperation of a Wit­ness :  If any of the above persons is not produced by the PTO for the purpose of being inter­viewed, or is pro­duced but does not freely cooper­ate and provide respon­sive answers to the ques­tions posed to them, the conse­quences the PTO may expect are:

 

a.  Any reference in the Proposal to Remove, or in the Notice of Re­moval, to information provided by, or any occurrence involving, a person listed above who is not pro­duced for inter­view or who fails to cooper­ate and provide respon­sive answers to the questions posed by the POPA could:

 

                i.   Be stricken and held of no force or effect with regard to establishing good cause for [the grievant]'s removal from federal service, or

 

                                ii.  Not be heard as a witness on behalf of the PTO.

 

                Document Production.   By the date specified, the PTO shall deliver the docu­ments or other materials and information listed below[:]

 

             Information                                                                                    Production                       

                        Request No.            Nature of Document                                    Date Ordered           

                       17                Case Files of Prior DoC Conflict of Interest                                        by 06/14/­04

                                                Determinations.

 

Consequences of Non-Production may well be the acceptance of an inference that: "All conflict of interest cases that have ever risen within the PTO or the DoC and its subordinate units have resulted in either no discipline, or discipline which never exceeded a 5-day suspen­sion, and generally resulted in only reprimands or written warnings, even in cases more egre­gious than that alleged against [the grievant].

 

*          *           *

 

Special Consideration Given Information Request No. 17 .  In re­sponse to the PTO's claim that all conflict of interest allegations or cases arising within the PTO are referred to the Ethics Officer or Counsel within the Office of the General Counsel of the [DoC], which office also processes or otherwise deals with conflict of interest allegations or cases arising in other bureaus, offices and activities under the [DoC], certain con­cessions have been made.  

 

First, the date for production of conflict of interest files has been extended to June 14, 2004, [ ].   Second, the names of the indi­vidual alleged in any case of having a conflict of interest may be struck or mask­ed, [ ].

 

Third, by this Order, the PTO can confront the custodian of the conflict of interest records with the consequences which will befall the PTO if it is unsuccessful in deliver­ing the requested materials.   If the custo­dian refuses to cooperate or assist the PTO in the production of the re­quested materials, either the PTO or [the Union] may obtain from the Clerk's Office of the US District Court in Alexandria, VA a blank form for a civil action subpoena duces tecum, fill in the name and title of the custo­dian and the other informa­tion called for thereon, and attached the best descrip­tion possible of the materi­als or files desired, and petition this arbitra­tor to fashion therefrom and issue a sub­poena for the custodian to appear before this arbitrator with the records sought for a determi­nation as to whether good cause in law or otherwise exists for not produc­ing for use in this arbitra­tion the materials sought.  

 

In this connection, and for benefit of both parties as well as the custodian of DoC conflict of interest records and files, enclosed with this Order is a copy of a recent US District Court decision explaining both the authority of an arbitrator to issue such a subpoena, and the procedures the pursuing party must follow to obtain its enforcement by the US District Court having jurisdiction over the custodian [ ].

 

Removal on Its Merits

 

                Recall that besides the two actionable charges of Conflict of Interest and Mis­representation, the Removal Proposal referenced two prior counselings by stating:

 

There have been several incidents in the past for which you were coun­seled about using your official position in an Internet posting in an effort to recruit 'infinite energy technologists' in order to 'infiltrate' the PTO or bothering a coworker to such an extent that you were banned from a part of the PTO's premises.   These counsel­ings should have put you on notice that you could not use your PTO position to advance your personal inter­ests. 

 

                Tagged to the end of this reference to prior counselings was the disclaimer that, "[b]ecause these counselings were informal, I did not consider them in determin­ing the appropriate corrective action to propose."   Still, accompanying the Removal Proposal sent to the Deciding Official, Mr. Godici, were the full files of the "Job Notice" inci­dent and, for shorthand, the "Behrend Visit," the two incidents referred to in the Proposal.   But, in addition, the full investigative file of a third incident, not mentioned in the Propo­sal, the grievant's "DoE Hearing Testimony" was also given to Mr. Godici, along with other materials on the grievant's cold fusion activities.

 

                More important, while Ms. Focarino, both in the written Proposal and her testi­mony, professed not to have considered any of the earlier counselings as other than put­ting the grievant on notice not to mix his private pursuits and interest with his official duties and position, Mr. Godici showed no restraint in the influence he gave these peripheral files, but found the three prior incidents pivotal, and the other materials important, in deciding that the only option he had was the grievant's removal.

 

                These influences were not reflected in the Removal Decision Mr. Godici signed because Ms. Rose drafted both the Removal Proposal for Ms. Foca­rino and the Removal Decision presented to Mr. Godici.   Thus, the latter docu­ment does not reflect the impor­tance Mr. Godici actually gave to what he found in the investi­gative files, but simply states that, "I understand that you have been coun­seled in the past against using your PTO position to advance your personal agenda or interests."

 

                Instead, the importance of the files sent to Mr. Godici on his thinking and how and why he reached his decision to remove the grievant form federal service was re­vealed by his testimony.   But before getting to that testi­mony, the actual conduct of the grievant in the three incidents needs to be explained.

 

The Three Prior Incidents

 

                Incident 1 - The Job Opportunity Notice .  Some time in late January or early Feb­ruary, 1998, the grievant prepared a "Notice: Job Opportunity," which found its way onto the Internet.  The Notice invited "Infinite Energy technologists" to "infil­trate" the PTO and join the grievant in making "policy changes."  Specifically, it de­clared, "Our goal is to help obtain patent protection for new emerging technology that may be regarded as 'inoperable' by those without your background."   In his Notice, the grievant not only gave the normal PTO address for aspiring patent examiners to send their resu­mes and applications, but:

 

Also, if you like, many insiders like myself are able to hand-carry resumes to our supervisors.   Therefore, I will also accept resumes sent to Integrity Research Institute, 1422 K Street NW, Suite 204, Washington, DC, and pass them on to my PTO supervisor or the appropriate PTO art unit super­visor if possi­ble.

 

                The Notice was prepared on a word processor and according to the grievant, FAXed to friends, one of whom, Eugene Mallove, the editor of an alternative energy

advocacy Internet website, posted the notice on that site with the notation:

 

The job notice was sent to me by USPTO staffer, [the grievant].   He gave me permission to post this electronically.

 

                A copy of the original FAX version of the notice was brought to the attention of the PTO by an unidentified attorney for a "patent applicant."   It was included in a rou­tine supple­mental filing received on February 14, 1998 by the patent examiner assigned to the application, the nature of which is unknown and thus the record is missing a pos­sible explana­tion of why it contained the promi­nent handwrit­ten notation:

 

DOCUMENTARY EVIDENCE of Internal PTO Dissent about Art Group 2200 [fusion] policies.

 

                The Internet posting was found on or shortly after February 26, 1998 by the grie­vant's immediate supervisor, Sandra O'Shea, or Ms. Rose, us­ing a Deja News search engine inquiry for the grie­vant's name.

 

                Incident 2 - Speaking at a DOE Hearing .  In the same or another DejaNews

search of the Inter­net for the grievant's name, Ms. O'Shea and Ms. Rose learned from a second posting made by Eugene Mallove that the grievant had made a presenta­tion to the Secretary of Energy at a Febru­ary 19, 1998 public hearing having, not surprisingly, to do with the country's energy resources and needs.   The Mallove posting is not in the record but must have included the grievant's advocacy for the need for DOE to recog­nize the legitimacy of cold fusion and other alternative, non-conventional sources of energy.   In any event, on February 26, 1998, Ms. O'Shea sent a memo to the DOE:

 

This is to inquire about [the grievant's] testimony at the hearing last Thurs­day [Febru­ary 19, 1998].   [the grievant]'s [Mallove's?] e-mail message about his testi­mony got posted on Dejanews.  Since he is an employee at the PTO, it would appear from the e-mail that [the grievant] may have repre­sented himself as a patent examiner at the hearing which would [have been] inappropriate.   I would like to obtain the transcript of the hearing so that I may make a determina­tion of his behavior. . . .

 

                Dutifully, the DOE provided Ms. O'Shea and Ms. Rose with the trans­cript, the portion of which covering the grievant's remarks showed:

 

MODERATOR WALKER:  And our final speaker for the evening, [the grievant], who is a Professional Engineer with Integ­rity Re­search Institute.

 

[THE GRIEVANT]:  My proposal is quite simple.   I would like to propose that the Department of Energy establish a council, a committee, or a department, specifically for overseeing the emerging technologies.

 

Establishing an office for emerging technologies I feel is the highest priority that will actually change the trend of the national development of known resources.   We're talking about non-conventional, cold fusion, zero point energy.

 

I have copies of the first pages of several patents in these categories.   For example, the Patterson cold fusion cell has almost a dozen patents; the Bell Telephone Labs-Lucent Technologies nuclear battery to last 25 years; hydrogen gas fuel cell from Stan Myers, which converts the standard automobile engine into a hydrogen fuel cell; in other words, specifically, 'burning hydrogen gas or running on water,' [ ]; and the Korea vacuum arc discharge.

 

There are many emerging technologies.  I didn't mention the Frank Meads zero point energy patent, the first one that has just come out.   I have been lecturing and publishing in this area for 18 years.  And, I can honestly say since we just produced a two hour documentary on free energy,['T]he [R]ace to [Z]ero [P]oint,['] these technologies are so promi­nent now, they basically exist [as] an alternative field.

 

And having someone prominent, such as Dr. Edmond Storms, a physicist like Dr. Gene [Mallove?], who are not beholding to the existing bureaucratic organizations.   I guarantee you'll see a remarkable shift in our evolution in energy technology.

 

I'd be happy to leave these with you.

 

SECRETARY PENA:  Good.   Thank you very much.

 

Let me say that the President's budget has called for a very substan­tial increase in R&D and in technology development and deployment.   And the Department of Energy, assuming that Congress supports our budget request, will see some significant increases there.  And so we are giving some serious thought about how we can be more effective in this area.

 

                                Your call for a specific office - -

 

[THE GRIEVANT]:   It has to be emerging technologies.

 

                                SECRETARY PENA:   Yes.

 

[THE GRIEVANT]:   It has to be that kind of alternative.

 

                                SECRETARY PENA:   I understand.

 

[THE GRIEVANT]:   Even the military in solicitations [for proposals] uses 'non-conventional.'   I actually was instrumental in the 1980s in getting 'non-conventional,' the phrase 'non-conventional' established in [profes­sional] publications.  The military then used it to solicit proposals.

 

That basically activates a whole group of scientists who are not publishing, not receiving recognition in the known press.

 

                                SECRETARY PENA:  Good idea.

 

[THE GRIEVANT]:  And, therefore, you actually bring them out in the open.   You bring them out into the open, where basically they now don't have funding, they don't have the recognition, they don't have the  en­dorsement.   Their technologies are too new to [have been] inte­grated into society with our known laws of physics.

 

                                SECRETARY VALONE:   I understand.

 

[THE GRIEVANT]:   And, yet, I can't say that honestly because I believe that the physics can be explained.   Even the Patterson fuel cell now is being understood slowly, but it's a matter of using the technology [now] and understanding it later.

 

                                SECRETARY PENA:  Good point.

 

[THE GRIEVANT]:   It's basically what I think our society and our world need.   Global warming can't wait for us to understand all of these techno­logies.

 

SECRETARY PENA:   We speak to this indirectly, not the question of focus you made and a particular office, but the need for us to devel­op technology that will expand our long term energy options, in Goal 4, Objective 2.

 

But listen, you made a very good suggestion.  We'll give it thought.  So, we thank you very much for the idea.

 

                This was the total of the grievant's presentation and the resulting exchange of comments and clarifications between him and Secretary Pena.  

 

                Counseling about Incidents 1 & 2 .  Since Incidents 1 and 2 occurred within a couple of weeks of each other, and perhaps because their Internet distributions were discover­ed in the same DejaNews search, both of these incidents were subjects of a March 30, 1998 investiga­tory interview of the grievant conducted by Ms. O'Shea and Ms. Rose and an additional HR staffer, Ms. Le.   The first matter he was questioned about was the "Job Notice" which he admitted writing but denied that he had posted on the Internet as he was being accused of doing by Ms. O'Shea and Ms. Rose.   He maintained that he had sent it by FAX and US Mail only to a few friends who he knew were considering federal government employ­ment.

 

                The grievant openly acknowledged that what he had meant by "infiltrate" the PTO was to have friends "who feel that there's an emerging technology that is not being recog­nized" by the PTO, join the ranks of patent examiners to turn this state of affairs around.   As the Notice had put it, "Our goal is to help obtain patent protection for new emerging technology that may be regarded as 'inoperable' by those without your background."   In response, the Agency's record of the interview showed that Ms. O'Shea (or maybe Ms. Rose) asked:

 

Q.                   [D]o you disagree with 35 USC §101?

 

 

 

A.                    I agree with 101. 4

 

                It appears that only because in his Notice the grievant provided the IRI address with the promise that he would hand carry the materials to HR, did he received "coun­seling," that he best confine him­self to examining patent applications and leave recruit­ing to HR.

 

                As for the DOE hearing, as Ms. O'Shea testified, the transcript of the grievant's testimony acquit­ted him of having identified him­self as a Patent Examiner, or worst yet, as appearing on behalf of the PTO, things that she indicated in her request for the tran­script she feared.   However, rather than forget the whole matter of his testimony, Ms. Rose asked, or was prepared to ask, without reference to either statute or regulation: 5

 

Are you aware of the ethical violations of being a government official [employee?] and representing yourself as something else [like an inter­ested private citizen] in front of another government agency? 6

 

                Since the grievant had made no misrepresenta­tions to the Secre­tary of Energy as to who he was or in what capacity he was speak­ing, and evidently having found no basis for the proposition that it is ethically or otherwise wrong to give your views as a private citizen, Ms. Rose and/or Ms. O'Shea resorted to his time and attendance record. It dis-clos­ed that he had claimed a full eight hours of PTO work on February 19, 1998.   While the hearing record is not totally clear, it appears that he either used his lunch hour to go to the DOE to register and get what was the last speaking slot for the hearing, or he skipped lunch and left work early (4:00 PM instead of his scheduled 5:00 PM departure time) to both regis­ter and speak.

 

                In any event, the counseling appears to have consisted of reminding the grievant of the necessity of taking annual leave when departing work early for personal business and requiring him to do so retroactively for February 19, 1998.   This despite his explana­tion given in the investigatory interview to Ms. O'Shea, Ms. Rose, and dutifully recorded by Ms. Le, during the following exchange:

 

 

Q.                    The Hearing was on a Thursday, from 1:00 to 5:00pm, no leave was taken for the absence.   Why wasn't leave requested?

 

 

A.                     [Nodded]

 

 

Q.                    (When asked by [Ms. O'Shea] ' you attended [the DoE conference] but no leave was taken?')

 

 

A.                     Went during lunch hour, usually take lunch 1-2 pm

 

                Normally I don't take [a] couple of hours for comp time

 

                  I was gone perhaps one hour most

 

 

Q.                    ([Ms. Rose] stated [the grievant] was gone 1-2 pm at the DOE; then returned later that afternoon for [another] hour at the DoE).

 

 

A.                     I did not request leave for that one hour.   I worked a lot of extra hours and [do] not claim time.

 

                Several hours wait, they did not let me speak right away.

 

I didn't think about (to take leave).   I was gone for less than an hour, must have left around 4  pm

 

 

Q.                    ([Ms. Rose] pointed out that the testimony was over at 5 pm and [the grievant] was the last to speak)

 

A.                     I must have left at 4:30 pm.

 

                I realize I should've requested leave

 

Q.                    ([Ms. Rose] asked whether he conceives this as government business)?

 

 

A.                     Not at all;

 

                This is the first time I disappeared for an hour and I got caught.

 

                While more will be said later about this matter of "failing to take an hour of annu­al leave," one aspect of this back-and-forth needs resolving here, lest it be forgotten later.   The Agency sought at the hearing to imply from this last answer of the grievant's recorded by Ms. Le that he was saying that he regularly skipped out from work an hour early and only on this occasion was caught.   However, the context of the question and the shorthand nature of Ms. Le's transcrip­tion strongly suggested that the grievant's answer was with a pause, and thus more in the nature of, "this is the first time I disap­peared for an hour, and I got caught," as in "what lousy luck."  

 

                The Agency was invited to resolve the question by calling Ms. Le to explain whether a comma was due in the midst of the sentence or not.   Since she was not called to testify, and the burden of proof lay with the Agency, it is assumed that the grievant's answer was broken with a pause which should have been reflected by a comma, and that his answer was not one which would tarnish his three years of "fully satisfactory" annual job performance ratings by an admission of habitual time and attendance fraud.

 

                Incident 3, Lobbying Mr. Behrend .  Just as the grievant's advocacy of cold fusion was well known within the PTO by those who cared one way or the other, so too was the PTO's policy since 1989, that cold fusion remained an "inoperable" concept and thus inven­tions claiming to be able to accomplish it were unpatentable, as well as was the role of Patent Exam­iner Beh­rend's in implementing that policy.

 

                Since this Agency's position ran counter to the grievant's beliefs in the potential of cold fusion becoming a reality, he visited Mr. Behrend's office in February or March, 1998 to ask him to consider attending a conference on cold fusion.   From the dates and sequences of what followed, it appears that Ms. O'Shea learned through word of mouth of the visit.  It also appears that the grievant and Mr. Behrend were friends, on a first name basis.

 

                In any event, on April 2, 1998, without talking to Mr. Behrend about his encoun­ter with the grie­vant, Ms. O'Shea sent the grievant the follow­ing "ban and bar" ultima­tum with regard to future visits to Mr. Behrend's office:

 

This is to inform you that you are being restricted from entering 3600 space in [the PTO Building], Suite 401.   If you have any reason to enter this space, you must first obtain permission from me and then Mr. Garrett [a supervisor of Mr. Behrend's] will be called and consulted about the appropriateness of your entering the aforementioned space.

 

                Besides having not spoken with Mr. Behrend before sending the ban and bar notice, Ms. O'Shea seems not have consulted with HR.   When after the fact she inform­ed Ms. Rose what she had done, Ms. Rose must have told her she needed to "paper" the incident.  This led to the following April 14, 1998 written response from Mr. Behrend to what seems to have been Ms. O'Shea's request that he memorialize the grievant's visit to his office:

 

                Re:                Recent Conversation with Tom Valone

 

Tom was one of the examiners in Group 2200 who have dropped by my office from time to time to discuss the subject of cold fusion.

 

Tom recently brought a publication from a cold fusion advocate for discussion.

 

During the discussion, Tom asked if I was going to the upcoming cold fusion conference in Vancouver.   I told him I wasn't, that the last I heard was that the Examiner's Education Trip Program had been eliminated.  Tom indicated he felt it was important enough for me to go to the conference that he would be willing to take care of expenses and donate sufficient leave to me.   I told him I didn't believe that such would be possible or permissible.

                Three days later, Ms. O'Shea received the following e-mail response to an inquiry she made of Robert Garrett, the second line supervisor of Mr. Behrend:

 

                Subject:                  Activities of Tom Valone

 

Examiner Harvey Behrend of TC 3640 examines patent applications in the area of cold fusion.   Examiner Behrend's supervisor, Charles Jordan, recently came to me to complain that examiner Tom Valone from your TC has been making visits to examiner Behrend for the purpose of discussing examiner Behrend's examina­tion of cold fusion applications.   More specifically, examiner Valone is attempting to convince examiner Behrend that the PTO's longstanding position that cold fusion is inoperable is incorrect.   Mr. Behrend has also advised me that examiner Valone, in a recent visit, offered Mr. Behrend money to attend a cold fusion conference in Canada.

 

Examiner Valone's visits have become an annoyance to examiner Behrend, and I have requested that you instruct examiner Valone to discontinue these activities.

 

                Also on April 17, 1998, Ms. O'Shea received a Memorandum from Charles Jor­dan, the Supervisory Primary Examiner (SPE) referred to above, and Mr. Behrend's immediate supervisor, the text of which was as follows:

 

Mr. Harvey Behrend, one of the examiner's in my Art Unit, works in class 376 and examines applications directed to 'cold fusion.'   Mr. Behrend reported to me in late February or early March that [the grievant] had contacted him regard­ing cold fusion and wanted to discuss a publication from a cold fusion advocate.   From the gist of the conversation with Mr. Behrend, it appears that [the grievant] was trying to convince Mr. Behrend to change his position, and the position of the Office, on cold fusion.   Mr. Behrend also relayed to me that [the grievant] indicated that he felt that an upcoming conference on cold fusion in Vancouver, Canada was so important that he wanted Mr. Behrend to attend and that he would pay the expenses himself and donate leave to Mr. Behrend so that he could attend.

 

From the conversation with Mr. Behrend it appeared to me that [the grievant] was lobbying against office policy on cold fusion and that his offer to pay for Mr. Behrend to attend the above conference was clearly inappropriate for a Patent Office employee.   I immediately informed the Director of Group 3640, Mr. Robert Garrett, of the above conversations and the actions by [the grievant].

 

The Reasons for Removal

 

                Subsequent to the three incidents for which the grievant received two counsel­ings, and the ban and bar order, his determination to promote scientific and public recognition of cold fusion and other non-conventional energy potentials led him to actions which resulted in his removal, allegedly for Conflict of Interest and Misrepre­sentations.

 

                The sequence of events started innocently enough.   Through his IRI, the grievant arranged a major presentation of alternative energy source theories under the sponsor­ship of the Department of State.   Specifically, by letter of October 16, 1998, the State Department sent the grievant the following:

 

I would like to take this opportunity to extend a formal invitation to initiate a conference on Free Energy at the Department as a guest of the Open Forum on April 29 and 30, 1999.

 

                The letter went on to explain that, "The Open Forum's Speakers' Program ex­plores new and alternative views on vital policy issues of the day," and that the format would be a series of 45 minute lectures each followed by a period of questions and comments from the audience over the course of seven or eight hours each of two days.   It also noted that "the conference will be on the record," and that "C-SPAN and other major media organizations have covered previous sessions of the Open Forum."

 

                The grievant and the IRI immediately set to work promoting and publicizing the upcom­ing event, dubbed "The First International Confer­ence on Free Energy," or the "COFE," with Internet postings and hard copy bro­chures.   A total of 14 speakers and 30 corpo­rate or institu­tional exhibitors were lined up and advertised as participants.  The April 29 and 30 speakers sessions were to be held in the State Depart­ment's Dean Acheson Auditorium at its main building in Washington.   As a separate function, the IRI also advertised "work­shops" on Saturday, May 1, 1999 at a hotel, led by many of the speakers, on a range of alternative power technologies.  

 

                On March 1, 1999, Corazon Foley, the State Department Director of the Open Forum Office sent a final memorandum of understanding to the grievant with the details of the program and security procedures for participants and attendees at the confer­ence.   By that date, the grievant had also lined up a cosponsor to underwrite some costs for meals, a speakers' reception, and other overhead.